340 F.

3d 664

UNITED STATES of America, Appellee,

v.
James J. MOSBRUCKER; Margaret Mosbrucker; Appellants,
State of North Dakota; Peter Hulm; S & M Company; J and S
Mobil Homes Service, Inc., a corporation; Robert F. Holt,
doing business as Credit Adjusters, Inc.; Mandan Community
Center; Ray Hoffman; Terry Gimbel; Melvin Jahner;
Community Credit Union, of Bismarck; United Accounts, Inc.,
a corporation; Ed Van Beek; Gray Oil Company, a
corporation; Mack & Associates, Inc., a corporation; Dakota
Credit, Inc., a corporation; John Sullivan, doing business as
Cannonball Ranch; James Massett; Northwest Tire, Inc., a
corporation; Security State Bank, of New Salem; Bank Center
First; Roger Hatzenbuehler, Defendants,
United States of America, Appellee,
v.
James J. Mosbrucker; Margaret Mosbrucker, Appellants,
James J. Mosbrucker; Margaret Mosbrucker, Appellants,
v.
United States of America, Appellee.
No. 02-2985.
No. 02-3347.
No. 02-3401.

United States Court of Appeals, Eighth Circuit.

Submitted: July 17, 2003.
Filed: August 22, 2003.
Rehearing and Rehearing En Banc Denied: October 23, 2003.

James J. Mosbrucker and Margaret Mosbrucker, pro se.

Shon Hastings, Fargo, ND, for appellee.

Before RILEY, HANSEN, and SMITH, Circuit Judges.

PER CURIAM.

In these three consolidated appeals, James and Margaret Mosbrucker

(Mosbruckers) appeal the district court's1 orders (1) denying the Mosbruckers'
Federal Rule of Civil Procedure 60(b) motion to vacate the foreclosure sale of
their property; (2) amending a March 24, 1997 judgment; (3) ordering the
Mosbruckers' eviction; and (4) granting the government summary judgment on
the Mosbruckers' complaint seeking to set aside a previous summary judgment
order. We affirm.
Rule 60(b) Motion

After the Mosbruckers defaulted on a farm loan secured by a mortgage on their

farm, the government began foreclosure proceedings against them in 1996. The
district court granted the government summary judgment and ordered a
foreclosure sale in March 1997. After lengthy legal proceedings, a foreclosure
sale occurred in August 2001, and the court confirmed the sale in September.

In late December 2001, the Mosbruckers moved under Rule 60(b)(3), (5), and
(6) to set aside the sale, contending the government had not met procedural
requirements or given them notice at various points during the foreclosure
process. The court denied relief on timeliness and other grounds. We affirm the
denial of relief.

The Mosbruckers did not appeal from the order confirming the foreclosure sale,
nor did they file their Rule 60(b) motion within the time to appeal, and all of the
arguments in support of their Rule 60(b) motion could have been raised in a
timely appeal. Because a Rule 60(b) motion may not substitute for a timely
appeal, we find no abuse of discretion in the district court's denial of relief. See
Int'l Bhd. of Elec. Workers v. Hope Elec. Corp., 293 F.3d 409, 415 (8th
Cir.2002) (standard of review); Chester v. St. Louis Hous. Auth., 820 F.2d 259,
260 (8th Cir.1987) (per curiam) (Rule 60(b) provides for relief only under
exceptional circumstances and is not intended to substitute for a timely appeal;
thus, if the alleged error could have been corrected by appeal, a motion must be
made within the time for appeal).
Motion to Amend Judgment

In June 2002, the government moved under Federal Rules of Civil Procedure
60(a) and 60(b) to correct an error in the March 1997 judgment granting the
government summary judgment. Specifically, the government learned in
January 2002 that its original complaint-as well as the subsequent pleadings,
the district court's judgment, and the marshal's deed-incorrectly indicated that a
thirty-acre portion of the subject property had been partially released, when
actually the thirty acres were simply subject to an electric utility easement to
which the government had subordinated its mortgage. The court granted the
government's order and entered an amended judgment reflecting that the thirty
acres were subject to an easement, not a partial release. On appeal, the
Mosbruckers argue the government should be held to the language of the deed,
because the legal description in the government's complaint was incorrect, the
request was untimely, and correcting the error in the legal description would
result in the Mosbruckers losing an additional thirty acres of land.2

The government's failure to discover its mistake for so many years is

disturbing. Yet we cannot conclude that the district court abused its discretion
in granting the government's motion. Although the government's motion was
untimely to the extent it invoked Rule 60(b)(1), see Fed.R.Civ.P. 60(b) (Rule
60(b)(1) motion must be made not more than one year after entry of judgment),
we agree with the government that relief was proper under Rule 60(a). See
Kocher v. Dow Chem. Co., 132 F.3d 1225, 1229 (8th Cir.1997) (Rule 60(a)
allows correction of judgment to reflect what was understood, intended, and
agreed upon by parties and court). In any case, relief was justified under Rule
60(b)(6). Cf. In re Grand Jury Subpoena Directed to Dakota Cheese, Inc., 923
F.2d 576, 577 (8th Cir.1991) (affirming denial of Rule 60(b) relief under a
different provision of Rule 60(b) than relied on by district court). Among other
things, to hold that the government acquired a foreclosure deed to all of the
property except for the thirty-acre easement tract would be inconsistent with the
recorded documents showing a blanket mortgage, an easement, and a
subordination agreement. The Mosbruckers were paid for the utility easement,
and they have not shown that they ever believed (prior to the government's Rule
60 motion) they owned the easement property free and clear of the mortgage, or
they relied prejudicially on such a belief. The Mosbruckers knew, or should
have known, the thirty acres were subject to a utility easement to which the
government's mortgage was subordinated, and the thirty-acre easement tract
was not partially released. Further, there is no evidence the government acted in
bad faith.
Eviction

The Mosbruckers also appeal from the district court's grant of the government's

The Mosbruckers also appeal from the district court's grant of the government's
eviction petition, arguing (1) the court lacked jurisdiction to evict the
Mosbruckers from the thirty-acre easement property, (2) the government
fraudulently attempted to evict the Mosbruckers from that property, and (3) the
Mosbruckers did not receive due process. Based on our prior discussion, we
conclude the court had jurisdiction under 28 U.S.C. 1345 to order the
Mosbruckers' eviction, no fraud was committed by the government, and the
Mosbruckers received notice and an opportunity to be heard. See Duncan v.
Dep't of Labor, 313 F.3d 445, 447 (8th Cir.2002) (per curiam) (due process).
Summary Judgment

Finally, the Mosbruckers appeal from the district court's grant of summary
judgment to the government in the Mosbruckers' August 2001 action to set
aside the district court's March 1997 summary judgment order. We affirm
because the action is barred by res judicata, see Oglala Sioux Tribe v.
Homestake Mining Co., 722 F.2d 1407, 1411 (8th Cir.1983); United States v.
Mosbrucker, No. 97-2829, 2000 WL 1532993 (8th Cir. October 17, 2000) (per
curiam), and because the matters raised should have been timely appealed in
1997, see Chester, 820 F.2d at 260.
Conclusion

Accordingly, we affirm the district court in all respects.

Notes:
1

The Honorable Patrick A. Conmy, United States District Judge for the District
of North Dakota

The Mosbruckers raise numerous other arguments for the first time on appeal.
We decline to address themSee Schaller Tel. Co. v. Golden Sky Sys., Inc., 298
F.3d 736, 741 (8th Cir.2002) (declining to consider argument first raised on
appeal).